Why Dems' Use of Civil War-Era Amendment Against Trump Over Capitol Riot Spells Danger to Democracy

Democratic lawmakers, constitutional scholars, and advocacy groups are quietly seeking ways to use Section 3 of the 14th Amendment to bar ex-President Donald Trump from holding office again over his alleged role in the Capitol breach, according to The Hill. Will they succeed in disrupting Trump's potential re-election bid?

The Hill reported on 6 January, citing Democratic representatives, legal experts, and non-profit group Free Speech For People, that the idea of banning Donald Trump and his political allies from running for government office under the 14th Amendment has been gaining steam.

According to The Hill's interlocutors, if the Democratic-led January 6 House panel finds that the Capitol breach was an "insurrection" with Trump playing a central role in it, it would immediately trigger the amendment. The 14th Amendment, which was ratified after the Civil War (1861-65), prohibits any person who has "engaged in insurrection or rebellion" against the government from running for federal or state office, unless Congress by a two-thirds vote specifically removes this inability.

'Dangerous Precedent'

"The original meaning of the Constitutional term 'insurrection' in the 14th Amendment that would bar someone from future federal office had to do with participation in a Civil War that caused the nation the loss of more than 700,000 lives", says Stephen B. Presser, leading American legal historian and professor of law at Northwestern University. "To liken that to the January 6 disturbance in which a group of unarmed civilians were, in effect, permitted to roam unchecked through a federal building is, in my opinion, the height of folly and dangerousness".

The aforementioned effort by the Dems and left-leaning advocacy groups is nothing but an attempt to "apply raw political power for partisan purposes", according to Presser. The professor warns that it would not only set a "terrible precedent" by empowering any party holding a majority in Congress to arbitrarily bar candidates of another party, but would also "tie up the political process in months if not years of litigation, at the federal and state court level".

The latest development makes it clear that the Democrats are afraid Donald Trump will win the 2024 presidential election if he throws his hat into the ring, according to Dr Nicholas Waddy, political analyst and associate professor of history at SUNY Alfred.

"In 2016, Democrats were gleeful that the GOP chose to embrace Trump, because they expected that he would go down in flames in the general election", Waddy recalls. "In both 2016 and 2020, however, Trump's electoral performance greatly exceeded Democrats' expectations, and the expectations of pollsters and media talking heads".

Thus, last year's Emerson College poll indicated that Trump would have outperformed Biden if the elections were held in November 2021. Furthermore, the incumbent's approval rating has been steadily plummeting over the last several months, over the COVID pandemic, the botched withdrawal from Afghanistan, soaring inflation, and Biden's incapability to push ahead with his signature initiatives, including the Build Back Better Act.

Will the Dems' Latest Effort Succeed?

It would be particularly hard and risky for the Democrats to brand the Capitol protest as an "insurrection", the observers believe.

"In the view of many Americans, the events of January 6 were a legitimate public demonstration of dissatisfaction with extraordinarily dubious changes to election procedures in 2020 as a result of an unprecedented pandemic, and the Democrats' determination 'not to let a crisis go to waste', through which they encouraged mail-in voting, extended deadlines, and other measures that favored their candidate and created the potential if not the actuality of massive fraud", says Presser.

The academic warns that any attempts to punish Trump and his supporters over the 6 January DC events and treat them as "insurrectionists" could further divide the country and "create an increased risk of future acrimony and extreme civil strife".

For his part, Waddy believes that it's highly unlikely that the Dems would succeed in finding Trump having engaged in "insurrection" and therefore be ineligible to seek federal office:

First, Trump encouraged his supporters to protest "peacefully" and lawfully on 6 January; he never encouraged them to break the law.

Second, the House January 6th Committee has produced no revelations of even minor significance so far, while the FBI and the Justice Department have found no evidence of a planned effort to overthrow the government on 6 January. In addition to that, no one whatsoever has been charged with "insurrection".

The aforementioned factors and clearly partisan nature of the House panel's inquiry reduce the credibility of any effort to exclude Trump or anyone else from eligibility to seek federal office, according to Waddy.

Dems Preparing Groundwork to Fight GOP in 2022 & 2024

"Democrats' primary motivation for pursuing a narrative of 'insurrection' against Trump, and more broadly against the GOP as a whole, is clear", says Waddy.

According to the academic, the Dems are seeking to disqualify not only Trump, but also other MAGA GOP contenders in future elections through various means: "either rhetorically and morally, by delegitimising them as 'insurrectionists', 'traitors', 'terrorists', etc., or legally and constitutionally, or removing Trump and Republicans from the ballot, or creatively negating the results of any election that Republicans win".

Waddy draws attention to the fact that Democrats are vigorously pursuing the line that current Republican efforts to promote election integrity and implement ID election laws "are, in fact, anti-democratic efforts to prevent minorities from voting".

"Thus, Democrats are preparing the groundwork to reject the results of the elections of 2022 and 2024, should they turn out badly for them", the political analyst believes. "The consistent theme here is simple: any election that isn't won by Democrats is invalid, and any seeker of office who isn't a Democrat is presumptively illegitimate and un-American. Needless to say, such attitudes and claims are inimical to democracy itself".